One size does not fit all, especially kids

By Adele HorinJune 21 2003

Men's groups have been lobbying the Federal Government to change the Family Law Act again. They want the law to decree that children should spend equal time with both parents after divorce, unless the Family Court can be persuaded otherwise. The concept is known as a presumption of joint residence or rebuttable joint residence.

Backbenchers have been under huge pressure from men's groups to hold a parliamentary inquiry. The Prime Minister gave heart to the petitioners by expressing a broad interest in the concept.

Fifty/fifty. Split down the middle. One-size-fits-all. Many of us know children who divide their time between mum and dad and, despite the hassles, it works. But most children post-separation spend much more time in their mother's household, and about one in three never sees their father at all.

Recent Australian research shows 74 per cent of separated fathers wanted more contact with their children - and 40 per cent of mothers wanted fathers to have more contact, too. The situation seems ripe for change. But let's slow down. Jumping from "more time" to legally prescribed "equal time" is a leap into potentially dangerous territory.

Before the PM gets swept away by the angry dads, he should talk to a few cool-headed men. Ironically, Australia's three main researchers on the Family Court and post-divorce parenting are men. Their work has sympathetically illuminated the position of fathers. Two have criticised feminist studies for an over-emphasis on violent dads; two have pointed out that "mothers are the gatekeepers of contact". One has criticised the standard access pattern whereby children see their father every other weekend and half the school holidays.

In other words, these well-regarded male researchers, Professor Patrick Parkinson, of the University of Sydney, Associate Professor Lawrie Moloney, of La Trobe University, and research fellow Bruce Smyth, of the Australian Institute of Family Studies, have strong sympathies for fathers. But none of them, it turns out, supports the introduction into law of a presumed 50-50 residence split. "It's scary," Parkinson said. Smyth had concerns. And Moloney said a time-share formula was not the answer.

Australian law presumes parents are jointly responsible for major decisions about their children, regardless of where they live. This has been the case since 1996. What is proposed now is a radical shift.

Family Court judges, of course, decide residence/contact issues in only a minority of cases. Many couples make their own arrangements. Of those who seek court orders, most settle by agreement, and only 5 per cent require a judge's determination. But once the law is changed its effect will reverberate throughout the community. It will become the benchmark for everyone, whether using the court or not.

What is wrong with the idea? Let's hear from Parkinson first. To put him in perspective, his recent study (with Bruce Smyth), called When the Difference is Night and Day, highlighted the desirability of children being able to stay overnight with their dad on contact visits. The ordinary shared experiences of bathtime, bedtime and breakfast outweighed the artificiality of Sunday outings. Only 48 per cent of dads had children stay overnight. A substantial proportion wanted more time and the paper said there seemed scope for more contact.

However, Parkinson urged "no rush to recommendations", pointing out the complexities - financial and logistical - that can legitimately impede more contact. For example, are there enough bedrooms in the father's house?

"Shared arrangements can work wonderfully well ..." he said. "But there's no way you could say it is in the best interest of the majority of children. If there's a presumption, a lot of women will be pressured into it because they can't afford $20,000 to litigate."

Smyth has recently conducted in-depth interviews with people in equal-time arrangements. He concludes that it requires a lot of good will to make it work: "It's the most logistically complex parenting arrangement possible." In his cases both parents had been strongly committed from the start. As well, all the men had to reduce their hours of work.

Finally Moloney, whose past research highlighted how fathers won contested custody cases in the Family Court only when mothers were judged inadequate. But he, too, has come out this week against a simple time-share formula.

There are women also opposed to the proposal, including Elspeth McInnes, convener of the Council for Single Parents and their Children. Even though her own daughter divides her time between both parents, she considers the arrangement works only when fathers are like her ex: "competent, trustworthy ... and lives locally". Many women she sees aren't so lucky. For fathers "equal time" will mean a reduction in their child support payments. For children it can mean a shuttlecock existence.

The Government may choose to ignore McInnes. But when it talks to men, it should also talk to the male experts whose pro-father credentials are impeccable. As neat as it sounds, equal time can be chaotic.